Bar Council comments on Draft Investigatory Powers Bill

5 November 2015

Responding to the publication of the Draft Investigatory Powers
Bill, Alistair MacDonald QC, Chairman of the Bar,
said:

"The "double lock" requirement of needing both judicial and
senior ministerial authorisation for the most intrusive
investigatory powers is not as secure as it is made out to be.
Government ministers will be able to authorise the interception of
people's conversations and messages in "urgent cases" - defined as
up to five days without authorisation - where judicial approval is
not possible. It is likely that a high volume of requests to snoop
on people's conversations will have an element of urgency about
them. Excluding judicial authorisation under any circumstance
immediately removes the element of independent oversight. As all
lawyers know, there is a duty judge available through the Royal
Courts of Justice 24 hours a day. There is no reason why such
provision could not be made available in cases where investigatory
powers are being sought.

"Existing surveillance laws, and this week's draft Bill, do not
do enough to protect the most confidential of communications,
namely those between a client and their lawyer. This is because
measures to protect legal privilege (LPP) will not be placed in
primary legislation. Instead, the proposal is that they will appear
in separate codes of practice to be published next year. It has
been recognised for centuries that this privilege, which is that of
the client and not the lawyer, is a cornerstone of the ability to
have a fair trial.

"If the client, in sensitive cases knows or suspects that his or
her conversations with their lawyer are being overheard by agents
of the state, they simply will not be able to be frank with their
legal advisors and miscarriages of justice may occur. We know
from experience that these codes are little more than guidelines,
and we need more than that to protect the important right to
consult a lawyer in private. In the absence of any effective
measures to make unlawful the targeting of communications between
client and lawyer by public authorities, there is no meaningful
protection for LPP.

"Once the security services or other state agencies have access
to sensitive material, what they do with it needs to be subject to
legal scrutiny. Past experience indicates that such information may
be shared with states who pay scant regard to the rule of law and
may use that information in ways, which deny the rights these
powers purport to protect."